The Politics of Law: Capricious Originalism and the Future of the Supreme Court

Abstract

In June 2022, the United States Supreme Court overturned Roe v.Wade, 1 the precedent that had guaranteed access to abortion as a fundamental liberty ensured by the Fourteenth Amendment for almost half a century. Most Americans don’t know much about the Supreme Court or the due process clause of the Fourteenth Amendment, but the abortion decision in Dobbs v. Jackson Women’s Health Organization triggered political protests, extensive press coverage, and a wave of voter registration. Candidates for political offices revised their campaign strategies. Millions of dollars were poured into a state-wide referendum on abortion in Kansas. In his majority decision in Dobbs, Justice Alito insisted that the Constitution speaks clearly; abortion is not a fundamental right to be defended by the Court but a policy issue to be determined by the political branches of government. Yet voters are skeptical about whether the Constitution provides such clarity. Polls have consistently shown that people (especially those who identify as Democrats) believe the justices of the Supreme Court are increasingly political, pursuing conservative goals rather than impersonally ruling on constitutionality. Political scientists have